Cottam v. Cvs Pharmacy, SJC-08497

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: SUMMERVILLE
• Citation: 436 Mass. 316
• Parties: ROBERT L. COTTAM vs. CVS PHARMACY. Docket No.:MASSACHUSETTS SUPREME COURT County: Middlesex
• Docket Number: SJC-08497
• Decision Date: 14 March 2002

ROBERT L. COTTAM
vs.
CVS PHARMACY.

Docket No.: SJC-08497

MASSACHUSETTS SUPREME COURT
County: Middlesex.

October 1, 2001.
March 14, 2002.

Summary: Negligence, Duty to warn, Pharmacy. Pharmacy. Witness, Expert. Evidence, Relevancy and materiality, Settlement offer.

Civil action commenced in the Superior Court Department on June 20, 1995.

The case was tried before Regina L. Quinlan, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Kenneth A. Cohen (U. Gwyn Williams with him) for the defendant.

Ned C. Lofton for the plaintiff.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

COWIN, J.

We address the issue whether a pharmacy has a duty to warn its customers of the potential side effects of the prescription drugs it dispenses. The plaintiff, Robert L. Cottam, suffered permanent injury when he failed to seek timely medical attention for a side effect he experienced after taking the prescription drug Trazodone. He had obtained the drug at a CVS Pharmacy (CVS). Cottam filed a complaint in the Superior Court alleging that CVS was negligent in failing to warn him of the side effect and its seriousness. Cottam also claimed negligence in failing to warn by his prescribing physician, Dr. Farrokh Khajavi, and by his therapist, Sheila McHatton. In its answer, CVS denied any negligence and asserted a number of affirmative defenses, including Cottam's own contributory negligence. Both Dr. Khajavi and McHatton settled with Cottam before trial. A jury found CVS fifty-one per cent negligent and Cottam forty-nine per cent negligent, and awarded Cottam damages (after reduction for comparative negligence) in the amount of $357,000. CVS filed a timely appeal, and we transferred the case here on our own motion.

On appeal, CVS argues that, as a matter of law, it does not have a duty to warn its customers of possible side effects associated with prescription drugs, and that CVS did not assume a duty to warn its customers of all side effects by warning them of some side effects. In the alternative, CVS argues that, even if it has a duty to warn, the plaintiff must establish the scope and breach of the duty of a pharmacist by expert testimony, and that the plaintiff did not present such expert testimony at trial. CVS also claims that two evidentiary rulings by the trial judge each constituted reversible error: (1) the judge improperly prohibited CVS from rebutting the presumption that Cottam would have heeded a warning if given; and (2) the judge erred in admitting evidence of Cottam's prior settlement of his claim against his doctor. We affirm.

1. Facts. We summarize the facts the jury could have found. In May of 1994, CVS implemented a computer system designed to provide its customers with written information about the risks and side effects of prescription drugs. The computer produced this information in one of two ways: a short, condensed form (short form) or a longer and more inclusive form (long form). Although CVS's computers automatically generated the short form unless the computer operator hit a key to print the long form, CVS's corporate policy required its pharmacists to distribute the long form when filling new prescriptions. CVS policy also required its pharmacists to review the information on both the long and short forms with the customer.

In March of 1994, Cottam was admitted to Boston Regional Medical Center for treatment for depression. Dr. Khajavi, the psychiatrist who treated Cottam, prescribed the prescription drug Trazodone. Dr. Khajavi instructed Cottam to continue taking the drug on his release from the hospital. Cottam filled his prescription for Trazodone at the CVS Pharmacy in Reading, on August 16, 1994. At trial, Cottam testified that the pharmacist, Barbara Swanson, gave him only the short form warning, which provided:

"POSSIBLE SIDE EFFECTS: Commonly: drowsiness. Very unlikely, but report: Dizziness, fainting, blood in urine, heart problems, breathing problems."

He also testified that the pharmacist discussed the medication with him, but that the sole warning she provided was that the drug may cause drowsiness. Swanson testified that she had given Cottam the long form warning, which included a warning about the risk of priapism, defined as an erection that is persistent, not produced by sexual stimulation and not relieved by orgasm. Specifically, the long form included the following: "SIDE EFFECTS:... Notify your doctor if you develop... painful erections...." The manufacturer's package insert, which Cottam also did not receive (but which it was not CVS's corporate policy to distribute) read:

"WARNINGS: TRAZODONE HAS BEEN ASSOCIATED WITH THE OCCURRENCE OF PRIAPISM. IN APPROXIMATELY 1/3 OF THE CASES REPORTED, SURGICAL INTERVENTION WAS REQUIRED AND, IN A PORTION OF THESE CASES, PERMANENT IMPAIRMENT OF ERECTILE FUNCTION OR IMPOTENCE RESULTED. MALE PATIENTS WITH PROLONGED OR INAPPROPRIATE ERECTIONS SHOULD IMMEDIATELY DISCONTINUE THE DRUG AND CONSULT THEIR PHYSICIAN."

Although this "warning" was the only "warning" in all capitalized letters in the package insert, priapism was not listed as a side effect, but as one of numerous adverse reactions for which "the causal relation has neither been confirmed nor refuted." Swanson admitted that she did not orally advise Cottam about the risk of priapism. Dr. Khajavi testified that he had warned Cottam that priapism was a potential side effect before prescribing the medication.

Cottam took his first dose of Trazodone at night before bed and awoke the next morning with an erection that persisted throughout the day. The erection became uncomfortable later that evening. Cottam did not contact his doctor, deciding instead to wait until the following day when he had a previously scheduled appointment with his primary care physician. He took his second dose of Trazodone before bed that evening.

Cottam attended the appointment with his primary care physician the following morning, August 18, 1994. On learning of Cottam's condition, the physician sent him immediately to a urologist. The urologist diagnosed Cottam's condition as...